Finally assessed bill of entry, time barred under sec 128,

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

30 October 2012
Dear all,

I would like to know, i have refund claim at customs, the bill of entires are finally assessed and paid duty and cleared. Re assessment of B.E under sec 128 is not possible as it is time barred.

Is reassessment esential for getting refund for finally assessed B/E?

can anyone update wayout for getting refund?

Querist : Anonymous

Querist : Anonymous (Querist)

02 November 2012 LEGAL POSITIONS:-

1.FIRST OF ALL, SUPREME COURT RULING IN THE MATTER OF PRIYA BLUE AND FLOCK INDIA HAS CHANGED SETTLED LEGAL POSITIONS FOR REFUND. IN THE ABOVE MATTERS,SC RULED THAT FOR FINALLY ASSESSED BILL OF ENTIRES, REFUND CAN BE ENTERTAINED ONLY AFTER THE ASSESSMENT ORDER IS MODIFIED IN AN APPEAL.

2. CBEC VIDE THEIR CIRCULR NO 24/2004 ALSO SPECIFIED THAT A REFUND CLAIM IS NOT MAINTAINABLE, WHEN THE ASSESSEE DID NOT CHALLENGED THE ASSESSMENT ORDER WHICH BECAME FINAL.

3. THE TIME FRAME FOR FILING AN APPEAL BEFORE COMM. APPEALS IS WITHIN 60 DAYS FROM B/E DATE UNDER SEC 128 OF CUSTOMS ACT.

4. THE TIME FRAME OF FILING REFUND CLAIM UNDER SEC 27 OF CUSTOMS ACT IS 1 YEAR FROM B/E DATE

5. THIS PRACTICALLY MEANS, FOR GETTING REFUNDS YOU SHOULD NOT ONLY FILE AN APPEAL BEFORE COMM. APPEALS WITHIN 60 DAYS BUT SHOULD ALSO GET A POSITIVE ORDER FOR REASSESSMENT WITHIN A PERIOD OF 10 MONTHS SO THAT REFUND CLAIM CAN BE FILED UNDER SEC 27 BEFORE ITS TIME BARRED. OR ALTERNATIVELY SEEK DELAY CONDOLENCE FROM COMM. APPEALS

6. ONLY PARRELELL SOLUTIONS AVAILABLE IS , IF BY MISTAKE SOME NOTIFICATION/ EXEMPTION BENEFITS ARE NOT AVAILED, THEN YOU CAN SEEK AMMENMENT OF BILL OF ENTRY UNDER SEC 154 OF CUSTOMS ACT WITHOUT GOING IN FOR REASSESSMENT ORDER FROM COMM. APPEALS. IN SUPPORT TO THIS, THERE IS SUPREME COURT RULING IN HERO CYCLES LTD. BOTH MUMBAI HIGH COURT AND SC HAVE DIRECTED DEPT TO AMMEND THE B/E UNDER SEC 154 AND ALLOW REFUND.

SUGGEST OTHER EXPERTS TO GIVE THEIR VIEWS, IF CONTRARAY OPINIONS ARE THERE..

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